[Added 12-28-2006 by L.L.
No. 6-2006]
A.
It is recognized that there are some uses which, because of their
very nature, have serious objectionable operational characteristics
under certain circumstances, which produce a deleterious effect upon
adjacent areas. Special regulation of these uses is necessary to ensure
that adverse effects will not contribute to the blighting or downgrading
of the surrounding neighborhood. The Town Board of the Town of Newfane
finds it in the public interest to enact these regulations. The purpose
of these regulations is to prevent or lessen the secondary effects
of adult entertainment uses, and not to inhibit freedom of speech.
B.
The unrestrained proliferation and inappropriate location of such
businesses is inconsistent with existing development and future plans
for the Town of Newfane in that they often result in influences on
the community which increase the crime rate and undermine the economic
and social welfare of the community. The deleterious effects of these
businesses change the economic and social character of the existing
community and adversely affect existing businesses and community and
family life.
As used in this article, the following terms shall have the
meanings indicated:
ADULT BOOK AND/OR VIDEO STOREAn establishment having as a substantial or significant portion of its stock-in-trade books, magazines, periodicals, or other printed matter or photographs, films, videos, slides or other visual representations which are characterized by the exposure of or emphasis on specified sexual activities or specified anatomical areas or instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities which are for sale, rental or viewing on or off the premises.
ADULT ENTERTAINMENT CABARETA public or private establishment which regularly presents topless and/or bottomless dancers, strippers, waiters or waitresses, male or female impersonators, lingerie models or exotic dancers, or other similar entertainment or films, motion pictures, videos, slides or other photographic material, or which utilizes employees that, as part of their employment, regularly expose patrons to specified sexual activities or specified anatomical areas.
ADULT THEATERA theater, concert hall, auditorium or similar establishment which, for any form of consideration, regularly features live performances characterized by the exposure of specified sexual activities or specified anatomical areas.
ADULT MOTION-PICTURE THEATERAny motion-picture theater where, for any form of consideration, films, motion pictures, videocassettes, slides or other photographic reproductions are shown, and in which a substantial portion of the total presentation time is devoted to the showing of material characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
MASSAGE ESTABLISHMENTAny establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths or steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath, duly licensed physical therapist, or duly licensed massage therapist or barbershop or beauty salon, athletic club, health club, school, spa or similar establishment where massage or similar manipulation of the human body is offered as an incidental accessory service.
ADULT MODEL STUDIOAny place where a person who appears in a state of nudity or who displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons who pay money or any form of consideration.
PEEP SHOWSA theater which presents materials distinguished or characterized by primary emphasis on matters depicting, describing or relating to specified sexual activities or specified sexual anatomical areas, in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged.
Adult entertainment uses shall be permitted only in the Light
Industry/Industrial Park (IP) Zone, subject to the following restrictions:
A.
Adult entertainment uses are prohibited within:
(1)
Five hundred feet of any zoning district which is zoned to allow
residential use.
(2)
Five hundred feet of any single-family, two-family, or multiple-family
dwelling, including structures devoted to both residential and commercial
or business purposes;
(3)
Five hundred feet of any public or private school;
(4)
Five hundred feet of any church or other religious facility
or institution;
(5)
Five hundred feet of any public park, public bike path, playground
or playing field, cemetery, civic or recreational facility.
B.
No adult entertainment use shall be allowed within 500 feet of another
existing adult entertainment use.
C.
No more than one adult entertainment use shall be located on any
lot.
D.
The distances provided hereinabove shall be measured by following
a straight line, without regard to intervening buildings, from the
nearest point of the property parcel upon which the adult entertainment
use is to be located to the nearest point of the parcel of property
or the land use district boundary line from which the adult entertainment
use is to be separated.
A.
No adult entertainment use shall be conducted in any manner that
allows the observation of any material depicting, describing or relating
to specified sexual activities or specified anatomical areas from
any public way or from any property not containing an adult entertainment
use. This provision shall apply to any display, decoration, sign,
show, window or other opening.
B.
There shall be no outdoor sign, display, or advertising of any kind
other than one identification sign limited to only the name of the
establishment.
D.
Adult entertainment uses shall meet all other regulations of the
Town of Newfane, including but not limited to district lot and bulk
regulations, parking regulations and signage.
E.
It shall be unlawful to operate an adult entertainment use between
the hours of 2:00 a.m. and 8:00 a.m.
F.
No person under the age of 21 years shall be permitted on or within
the premises of an adult entertainment business.
A.
No person shall engage in, conduct, or carry on an adult entertainment
business in the Town of Newfane unless a complete application therefor
has been submitted, approved, and a permit issued by the Town of Newfane
Zoning Enforcement Officer (ZEO).
B.
Each application for an adult business shall be submitted to the
ZEO, contain all the information described below, and be accompanied
by a nonrefundable application fee of $500:
(1)
The name, residential street address, and residential mailing
address (if different) of the applicant.
(2)
The street address and mailing address (if different) of the
proposed adult business.
(3)
All other residences of the applicant for the three-year period
immediately preceding the date of the application.
(4)
The business, occupation, or employment of the applicant for
the three-year period immediately preceding the date of the application.
(5)
Written proof that the applicant is 21 years of age or older.
(6)
A complete set of the applicant's fingerprints.
(7)
A description of the facilities and services to be available
on the premises of the proposed adult business.
(8)
The history of the applicant in the operation of similar establishments
or businesses, including, but not limited to, whether or not the person,
previously operating in this state or another city or state under
license, has had such permit revoked or suspended and the reason therefor,
and the business activity or occupation subsequent to such action
of suspension or revocation.
(9)
The criminal record, if any, other than misdemeanor traffic
violations, of the applicant; if the applicant is an association or
partnership, the criminal record of each officer or director of the
corporation and each of the stockholders owing more than 10% of the
stock of the corporation; if the applicant is a limited-liability
company, the criminal record of each of the members and managers of
the limited-liability company.
(10)
A scale site plan showing. North arrow, drawing scale, Tax Map
number, property boundaries and dimensions, existing and proposed
buildings and dimensions, proposed grading and drainage, vegetation,
parking, driveways, lighting, signs, refuse containers, fences, water
source, sewage system and any other pertinent information that may
be deemed necessary by the Town of Newfane Planning Board and site
plan requirements of the Town of Newfane.
C.
Upon receipt of a complete application and fee as provided for above,
the ZEO shall make or cause to be made a thorough investigation of
the applicant's criminal record, and shall review the site plan
for compliance with the provisions of this chapter.
A.
Permit approval. A permit application may be approved by the ZEO
where it appears that the applicant has not been convicted of any
offense which would be cause for denial of a permit upon an original
application, has not made false statements on an application for a
permit, has not previously owned or operated an adult business which
resulted in suspension or revocation of permits or licenses, and has
not committed an act in violation of this chapter. The ZEO shall issue
a permit within five days of completing his investigation and concluding
that issuance of the permit is warranted. A copy of the permit shall
be filed in the office of the Town Clerk.
B.
Permit denial. A permit application may be denied by the ZEO where
it appears that the applicant has been convicted of any offense which
would be cause for denial of a permit upon an original application,
or has made a false statement on an application for a permit, or has
previously owned or operated an adult business which resulted in suspension
or revocation of permits or licenses, or has committed an act in violation
of this chapter. The ZEO shall give the applicant a written notice
specifying the grounds for permit denial. The applicant may, within
10 days from the date of such denial, file a written request with
the Town Board for a public hearing. The hearing shall be conducted
by the Town Board and held within 30 days after filing the request
for the hearing, and at which time the permit holder may present evidence
bearing upon the question. The Town Board shall then issue a written
finding within five days after the date of the public hearing as to
whether the permit application was properly denied. If the Town Board
determines the permit was unduly denied, the ZEO shall be directed
to issue a permit within five days of the date of the written finding.
A copy of the permit shall be filed in the office of the Town Clerk.
C.
Permit suspension. A permit may be suspended and a fine levied against
the permit holder by the ZEO where it appears that the permit holder
has committed an act in violation of this chapter. The ZEO shall give
the permit holder a written notice which shall: direct the permit
holder to immediately cease operation of the business, specify the
grounds for suspension, specify the action that the permit holder
must undertake to correct the violation, designate a ten-day time
period from the date of said notice for all violations to be corrected
to the satisfaction of the ZEO, specify that if the violations are
not adequately corrected within the ten-day time period, the permit
shall be immediately revoked, and specify the fine to be levied against
the permit holder. The permit holder may, upon payment of all fines
and within 10 days from the date of such suspension, file a written
request with the Town Board for a public hearing. The hearing shall
be conducted by the Town Board and held within 30 days after filing
the request for the hearing, and at which time the permit holder may
present evidence bearing upon the question. The Town Board will then
issue a written finding within five days after the date of the public
hearing as to whether the permit was properly suspended. If the Town
Board determines the permit was unduly suspended, the permit shall
be immediately reinstated, monies collected for fines shall be returned,
and the adult business shall be allowed to resume operation. If the
Town Board determines the permit was properly suspended, the adult
business shall continue not to operate, and the permit holder shall
have 10 days from the date of receipt of the written finding to correct
the violation(s) to the satisfaction of the ZEO. If the violation(s)
are adequately corrected, the ZEO shall immediately reinstate the
permit and the adult business shall be allowed to resume operation.
If the violation(s) are not adequately corrected, the ZEO shall immediately
revoke the permit following the procedures described below.
D.
Permit revocation. A permit may be revoked by the ZEO where it appears
that the permit holder has not corrected violations pertaining to
a previously issued suspension notice, or has committed an act in
violation of this chapter. A permit shall be automatically revoked
if the permit holder receives more than two separate suspensions.
The ZEO shall give the permit holder a written notice directing the
permit holder to immediately terminate operation of the business and
shall specify the grounds for revocation. The permit holder may, within
10 days from the date of such revocation, file a written request with
the Town Board for a public hearing. The hearing shall be conducted
by the Town Board and held within 30 days after the filing of the
request for the hearing, and at which time the permit holder may present
evidence bearing upon the question. The Town Board shall then issue
a written finding within five days after the public hearing as to
whether the permit was properly revoked. If the Town Board determines
the permit was properly revoked, the adult business shall immediately
and permanently cease to operate.
A.
The owner of a building or premises, his agent for the purpose of
managing, controlling or collecting rents or any other person managing
or controlling a building or premises, any part of which contains
an adult use, shall register with the Town Clerk of the Town of Newfane
the following information:
(1)
The address of the premises.
(2)
The name and address of the owner of the premises and the names
and addresses of the beneficial owners if the property is in a land
trust.
(3)
The name of the business or the establishment subject to the
provisions of this chapter.
(4)
The name(s) and address(es) of the owner, beneficial owner or
the major stockholder(s) of the business or establishment subject
to the provisions of this chapter.
(5)
The date of initiation of the adult use.
(6)
The nature of the adult use.
(7)
If the premises or building is leased, a copy of said lease.
B.
It is a violation of this chapter for the owner or person in control
of any property to establish or operate thereon or to permit any person
to establish or operate thereon an adult use without having properly
registered said adult use with the Town Clerk.
C.
The registration fee shall be $1,000 annually.
The owner or agent of a registered adult use shall display in
a conspicuous place on the premises of the adult use a copy of the
registration filed with the Town Clerk.
A.
A violation of any provision of this article shall constitute an
offense, and shall be subject to suspension of the permit and be punishable
by a fine of $500 for the first suspension, and $1,000 for a second
and final suspension. A permit shall be automatically revoked if the
permit holder receives more than two separate suspensions.
B.
If an adult business operates without a permit, or unlawfully operates
after a permit was properly suspended or revoked, such violation shall
be punishable by a fine of $1,000 and/or by imprisonment for up to
15 days, Each day such a violation continues shall constitute a separate
offense.
Should any section or provision of this article be declared
to be unconstitutional or invalid by the courts, such decision shall
not affect the validity of the balance of this article.
This article shall take effect immediately upon filing with
the Secretary of State.
